Hadley v. J.A.C.S. Cartage, 2010 HRTO 2291

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bevin Hadley

Applicant

-and-

J.A.C.S. Cartage Ltd., Craig Wedgbury, and Roumiana Lalova

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: November 18, 2010

Citation: 2010 HRTO 2291

Indexed as: Hadley v. J.A.C.S. Cartage

1This Interim Decision addresses the applicant’s request that the Tribunal wait until the peace bond against him expires on March 2, 2011 before continuing to process his Application and the respondent’s Request to Dismiss the Application.

Request to Dismiss

2The corporate respondent and the personal respondent Craig Wedgbury (the requesting respondents) filed a Request for Order During Proceedings (the “Request”) on October 1, 2010 requesting that the Application be dismissed pursuant to s. 34(11)(b) and/or s. 45.1 of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (“the Code”) and that the Application be dismissed as disclosing no prima facie case and as an abuse of process.

3The applicant did not respond to the Request nor did the personal respondent, Ms Lalova.

Section 34(11)

4The respondent submits that the criminal proceedings against the applicant finally determined whether the applicant’s rights under the Code were infringed and that the applicant is therefore barred from pursuing his Application in accordance with s. 34(11) of the Code.

5Section 34(11) of the Code bars certain Applications where a civil proceeding has been commenced which relates to the same facts as those in the Application and which seeks a remedy in respect of the alleged Code infringement.

6The applicant in this case was not involved in a civil proceeding but a criminal one. The issue before the criminal courts was whether the applicant criminally harassed the personal respondent, Ms Lalova. The criminal proceeding did not relate to or determine whether the applicant’s rights under the Code had been infringed; nor could the applicant have sought a remedy for the alleged infringement of his human rights in the criminal proceedings. Section 34(11) therefore has no application to the circumstances of this case, and this part of the Request is dismissed accordingly.

Section 45.1

7The respondents also submit that the Application should be dismissed because the criminal proceeding appropriately dealt with the subject-matter of the Application pursuant to s. 45.1 of the Code.

8The criminal proceedings did not deal with the subject-matter of the Application, namely whether the respondents infringed the applicant’s rights under the Code, appropriately or otherwise. The criminal proceedings dealt only with whether the applicant had committed an offense under the Criminal Code. The Request that the Application be dismissed under s. 45.1 of the Code is therefore dismissed.

Prima Facie Case and Abuse of Process

9In the Request, the corporate respondent and the personal respondent Craig Wedgbury submit that the Application should be dismissed because it discloses no prima facie case under the Code and because the Application constitutes an abuse of the Tribunal’s process. These issues were also raised by the Tribunal in its earlier Interim Decision in this matter: 2010 HRTO 1529.

10The Tribunal may not finally dispose of an Application within its jurisdiction without affording the parties an opportunity to make oral submissions (s. 43(2)). Thus, unless the right to make oral submissions is waived, the Tribunal may not dismiss the Application as an abuse of process or as disclosing no prima facie case on the basis of the parties’ written submissions. Some kind of teleconference or in-person hearing would be required.

11The parties have agreed to mediation in respect of the Application. In all of the circumstances, and in accordance with the Tribunal’s usual practice, I find that it would be most fair, just and expeditious to have the Application proceed to mediation before a hearing is convened in respect of the Application.

12The Vice-chair assigned to hear the Application will determine and direct the order in which the Request that the Application be dismissed as disclosing no prima facie case and/or as an abuse of process will be considered and determined. See Rule 1.7(g) of the Tribunal’s Rules of Procedure. All of the parties should be prepared to make submissions on these issues at the hearing of the Application.

13I remind the parties that the Tribunal has the discretion to decide to hear the respondents’ argument that the Application ought to be dismissed as disclosing no prima facie case after the applicant has called his evidence: Potvin v. Hydro One Networks, 2009 HRTO 2123 at paras 26-27.

Request to Postpone until Peace Bond Expires

14The applicant was charged under the Criminal Code with criminally harassing Ms Lalova, one of the personal respondents. Those criminal proceedings concluded with the applicant entering into a Recognizance to Keep the Peace on March 2, 2010 (“the peace bond”). Pursuant to that Recognizance, the applicant agreed to “have no contact or communication, directly or indirectly with Roumiana Lalova” among other things.

Submissions of the parties

15The applicant asks that the Tribunal postpone consideration of his Application until the peace bond expires on March 2, 2011, apparently so that he will not breach the terms of his peace bond by participating in the Tribunal process, and thereby having direct or indirect contact with Ms Lalova.

16The personal respondent, Ms Lalova, has filed submissions regarding the applicant’s request in which she submits that the applicant has already breached the peace bond and that she fears for her safety after March 2011. She submits that the applicant’s actions have disabled her from working. She does not take a position with respect to how the Tribunal ought to dispose of the applicant’s request but asks the Tribunal to take her submissions into account in determining the issue.

17The corporate respondent and the personal respondent Craig Wedgbury oppose the applicant’s request that the Tribunal wait until the peace bond expires before continuing to process the Application. They assert that they would be prejudiced if the Tribunal were to delay dealing with the Application in accordance with the applicant’s request, but do not explain how they would be prejudiced.

Decision

18All of the parties, including the respondents, are entitled to the fair, just and expeditious resolution of the Application. In my view, the respondents should not have the Application “hanging over their heads” for an excessive period of time because the applicant is under a criminal sanction and legally prohibited from having contact with one of them.

19On the other hand, the practical reality is that the peace bond will expire in less than four months, on March 2, 2011. If the matter were scheduled for mediation at this time, then, in the normal course, the mediation would take place early in the new year. Accordingly, only a relatively short delay in the scheduling of the mediation is required in order to ensure that the applicant may access the Tribunal’s processes in respect of his Application under the Code. In all of the circumstances, I find that it is appropriate to direct that mediation in this matter be scheduled to occur as soon as possible after the peace bond expires on March 2, 2011. The Registrar will advise the parties of the time and date for mediation.

20As for the personal respondent Ms Lalova’s submissions that she fears for her safety and that the applicant has breached the terms of his peace bond, the Tribunal lacks the jurisdiction to address these issues. However, if Ms Lalova wishes to be accommodated in respect of the Tribunal’s processes on the basis of a Code ground, she may communicate that request in accordance with the Tribunal’s policy. The Tribunal’s Policy on Accessibility and Accommodation is available on its website, www.hrto.ca, under “Resources”.

21I am not seized of this matter.